Opinion
Case No. 99 C 4447
February 18, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Daniel Pernice brings this action against defendant, the City of Chicago ("the City"), alleging violation of the Americans with Disabilities Act ("the ADA"). 42 U.S.C. § 12111-12117. Before the Court is the City's Motion to Dismiss pursuant to Fed R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.
BACKGROUND
The following facts are taken from Mr. Pernice's First Amended Complaint which the Court takes as true for purposes of this motion to dismiss. Homeyer v. Stanley Tulchin Assoc., Inc., 91 F.3d 959, 960 (7th Cir. 1996)
For approximately twenty years, Daniel Pernice worked as a stationery engineer within the Department of Aviation for the City of Chicago. On March 2, 1998, while off duty, Mr. Pernice was arrested and charged with possession of cocaine and disorderly conduct. He was, however, not convicted of those charges. On June 11, 1998, Mr. Pernice, acknowledging a problem with drugs, admitted himself for treatment at a substance abuse treatment facility. On June 18, 1998, Mr. Pernice was released from the facility and admitted to an outpatient program. Subsequently, on June 25, 1998, Mr. Pernice filed a request with the City for medical leave for the purpose of dealing with his drug dependency. The next day, Dr. George Lagorio submitted a letter to the Department of Aviation on behalf of Mr. Pernice, stating that Mr. Pernice is a patient in a substance abuse program under his care. Mr. Pernice also has been and continues to this day to regularly attend Alcoholics Anonymous and Narcotics Anonymous, and remains drug free.
But on August 27, 1998, Mr. Pernice was terminated from his employment with the City for violations of various personnel rules in connection with his March 2 arrest. Specifically, Mr. Pernice was charged with having violated rules prohibiting the possession of controlled substances, for engaging in any act prohibited by the Municipal Code, and for engaging in conduct unbecoming a public employee. The termination of Mr. Pernice's employment was upheld by the Personnel Board of the City in September 1998.
On February 25, 1999, Mr. Pernice filled a charge with the Equal Employment Opportunity Commission alleging discrimination on the basis of disability. The EEOC issued a "Notice of Right to Sue" letter on April 27, 1999 and Mr. Pernice filed the present suit on July 6, 1999, with an amended complaint being filled on October 13, 1999.
DISCUSSION
In ruling on the defendant's motion to dismiss, the Court adheres to the familiar standard of viewing the pleadings in the light most favorable to the plaintiff. Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1993). Consequently, the court accepts all well pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Id. Furthermore, the court will only dismiss a complaint for failure to state a claim if no relief may be granted under any set of facts that could be proven consistent with the allegations found in the complaint. Hishon v. King Spaldina, 467 U.S. 69, 73 (1984). The complaint, however, must provide the defendant with sufficient notice of the claims alleged. Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995) (citing Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994)). And if the complaint alleges facts that show the plaintiff is not entitled to judgment, then the plaintiff has plead himself out of court and dismissal will be appropriate. See Early v. Bankers Life Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992).
In this case, Mr. Pernice purports to state a claim under the ADA that prohibits employers from discriminating against "a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). Therefore, in order to survive a motion to dismiss, Mr. Pernice must allege that (1) he has a disability; (2) that he is qualified for the job; and (3) that he was terminated from his job because of his disability. 42 U.S.C. § 12112(a); see also Banks v. Hit or Miss, Inc., 946 F. Supp. 569, 570 (N.D. Ill. 1996). The Court grants the City's motion to dismiss on the ground that Mr. Pernice has failed to sufficiently allege a causal connection between his termination and his alleged disability.
The City presents this Court with two alternative arguments for why Mr. Pernice does not sufficiently allege the causal element of his ADA claim: First it argues that the doctrine of issue preclusion prevents Mr. Pernice from relitigating the grounds of his discharge since the City's Personnel Board has already determined that the discharge was due to violations of personnel rules. Second, the City claims that Mr. Pernice's complaint alleges that he was discharged solely because he was arrested for possession of drugs in violation of personnel rules, and not "because of his disability" as is required under the ADA.
Issue Preclusion
The Court rejects the City's first point that a prior adjudication of common issues before an administrative body would preclude this Court from trying de novo an ADA claim. According to the Amended Complaint, Mr. Pernice's termination from the Department of Aviation and the asserted grounds for termination were upheld by the Personnel Board of the City of Chicago. (Amd. Cplt. ¶ 13). The Personnel Board is a body organized pursuant to municipal law with the authority to hear "all appeals by any career service employee of discharge, demotion, or suspension . . . upon request of the employee . . ." Chicago Mun. Code § 2-74-060. While Illinois law affords judicial review of agency findings, 735 ILCS 5/3-101 et. seq., the Amended Complaint does not indicate that this decision was ever appealed to the state courts.
Whether an unreviewed factual determination by a state or municipal agency is accorded preclusive effect in a subsequent federal action is a matter of statutory interpretation. See University of Tennessee v. Elliot, 478 U.S. 788, 794-96 (1986);Astoria Federal Savings Loan v. Solimino, 501 U.S. 104, 108 (1991). In Elliot, the Supreme Court determined that Title VII's statutory scheme evidences an intention by Congress to exempt Title VII from common law principles of preclusion. Id. at 795-96. Specifically, the Court found:
Under 42 U.S.C. § 2000e-5(b), the Equal Employment Opportunity Commission ("EEOC"), in investigating discrimination charges, must give "substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or [local employment discrimination] law." As we noted in Kremer, [citation omitted] it would make little sense for Congress to write such a provision if state agency findings were entitled to preclusive effect in Title VII actions in federal court.Id. Likewise, in Astoria, the Supreme Court found that the filing provisions of the Age Discrimination in Employment Act ("ADEA") "assume the possibility of federal consideration after state agencies have finished theirs," implying, therefore, an intention on the part of Congress that federal courts not give preclusive effect to unreviewed administrative findings. 501 U.S. at 111.
While the Supreme Court has yet to address specifically administrative preclusion in the context of an ADA claim, its decisions in Elliott and Astoria have all but decided the issue. Mr. Pernice brings his claim pursuant to Title I of the ADA, 42 U.S.C. § 12117. Title I of the ADA explicitly adopts the remedies, rights and procedures of Title VII, including the very same deferral procedures that the Elliott Court found indicative of a Congressional intent to exempt Title VII claims from the demands of the preclusion doctrine. 42 U.S.C. § 12117(a) (incorporating by reference Title VII remedies, rights and procedures, including 42 U.S.C. § 2000e-5); see also, Dertz v. City of Chicago, 94 C 542, 1997 WL 85169, at *10 (N.D. Ill. Feb. 24, 1997); Thomas v. Contoocook Valley School Dist., 150 F.3d 31, 40, n. 5 (1st Cir. 1998); contrast Title II of the ADA, 42 U.S.C. § 12131-12165. Because the Title VII deferral provision also applies in the ADA context, the holding in Elliot is directly applicable in this case. Dertz, 1997 WL 85169 at *10;Thomas, 150 F.3d at 40, n. 5. Therefore, the unreviewed findings of the Personnel Board upholding the grounds of Mr. Pernice's dismissal will not prevent him from pursuing his claims under the ADA in this forum.
Drug Possession
The Court, however, finds persuasive the City's contention that terminating Mr. Pernice for possession of drugs is not the same thing as terminating him on the basis of any alleged disability. An employee does not receive any protection under the ADA for consequences of behavior that, while related to the disability, is equally prohibited to all employees. See Palmer v. Circuit Court of Cook County, Illinois, 117 F.3d 351, 352 (7th Cir. 1997). With respect to those who engage in drug use, the ADA explicitly provides that:
[an employer] may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee. . . .42 U.S.C. S 12114(c)(4); see also, Despears v. Milwaukee County, 63 F.3d 635, 637 (7th Cir. 1995).
In this case, Mr. Pernice's allegation of discrimination is grounded solely on the fact that the City discharged him on the basis of having been arrested and charged with possession of illegal substances. The plaintiff confirms the sole ground of his claim in his response to the City's motion to dismiss, stating that "the only issue is possession. . . ." (Pltf. Resp. at 9). But if that is the case, the plaintiff has plead himself out of court.
The Seventh Circuit's decision in Despears states the applicable law:
The refusal to excuse, or even alleviate the punishment of, the disabled person who commits a crime under the influence as it were of his disability yet not compelled by it and so not excused by it in the eyes of criminal law is not "discrimination" against the disabled; it is a refusal to discriminate in their favor. It is true that the Americans with Disabilities Act and the Rehabilitation Act require the employer to make a reasonable accommodation of an employee's disability, but we do not think it is reasonably required accommodation to overlook infractions of law.63 F.3d at 637. Here, the City, by terminating Mr. Pernice on the basis of illegal possession, simply treated Mr. Pernice as they would any other employee who commits the same infraction, without regard to his status. As such, Mr. Pernice is not afforded any, protection under the ADA.
And Mr. Pernice cannot successfully distinguish his case fromDespears. Mr. Pernice argues that "all substance abusers must necessarily, at some point possess the substance . . ." and, therefore, because his possession of drugs "was an integral part of his disability, his addiction," termination on the basis of possession was tantamount to termination on the basis of disability. (Pltf. Resp. at 9-10). But Mr. Pernice misconstruesDespears. There, the court was careful to point out that in order to form the "bridge" between the adverse employment decision and the disability, the behavior for which the plaintiff was disciplined must amount to a "compulsion," i.e. a wholly involuntary impulse. Despears, 63 F.3d at 636. Otherwise, the established law is that "if an employer fires an employee because of the employee's unacceptable behavior, the fact that that behavior was precipitated by a [disability] does not present an issue under the Americans with Disability Act." Palmer, 117 F.3d at 352.
Here, Mr. Pernice does not allege that possession of drugs is a compulsion or a wholly involuntary behavior arising from his disability. Possession may be part and parcel of how a drug addict develops the dependency and supports it, but there is no operative presumption that the choice to obtain the drugs is ever anything but a voluntary choice. Certainly the law takes that position by ascribing criminal sanctions for possession and by not providing an exception for addicts. Cf., Despears, 63 F.3d at 636-37 (citing Robinson v. California, 370 U.S. 660, 666-67 (1962)). Therefore, because Mr. Pernice alleges that the City terminated him only on the basis of possession of illegal substances, and alleges no other facts suggesting that the City terminated him on the basis of any alleged disability, the Court grants the City's motion to dismiss.
CONCLUSION
For the above reasons, the defendant City of Chicago's motion to dismiss is granted.
IT IS SO ORDERED.